Griffiths v Northern Territory of Australia [2007] FCAFC 178 (22 November 2007)

Timber Creek

Between:

Alan Griffiths and William Gulwin (on behalf of the Ngaliwurru and Nungali peoples) (Appellant)

AND

Northern Territory of Australia (Respondent)

Judges: French, Branson & Sundberg JJ

Where made: Darwin

Determination:

This was an appeal from the determination made in Griffiths v Northern Territory of Australia (No 2) [2006] FCA 1155 (28 August 2006), where Weinberg J found non-exclusive native title rights and interests existed over the entire determination area.

The appellants submitted that Weinberg J had erred by not finding that exclusive native title existed.

The Full Court ruled that the traditional custom of the Ngaliwurru and Nungali people requiring permission to be sought before entering their land was sufficient to prove that they did hold exclusive possession of the area.

The appeal was allowed, and the Court ordered that the judgment of Weinberg J be amended to recognise exclusive native title over numerous town lots, and non-exclusive native title over the creek named Timber Creek, all within the township of Timber Creek.

Background

The first of three applications for native title in the area was filed on 10 December 1999 by Mr
Alan Griffiths on behalf of the Ngaliwurru and Nungali Peoples. The applicant sought a
determination of native title rights and interests over a parcel of land in the Timber Creek township known as Lot 47. It was a
protective response to the Northern Territory Government's notice of its proposal to compulsory acquire the land.

A second application was filed by Alan Griffiths and William Gulwin on 11
May 2000, responding to notices for the compulsory acquisition
of Lots 97-100,
109, and 114 within Timber Creek dated 2 February 2000.

A third
application by the same applicants was filed
on 18 July 2000 [1].

Weinberg J heard the three applications together unconsolidated in 2005 and delivered his judgment on 17 July 2006. The parties were given the opportunity to formulate a draft determination before the determination of native title was made in Griffiths v Northern Territory of Australia (No 2) [2006] FCA 1155 (28 August 2006) [2],[3].

Details of Judgment

On 18 September 2006 Messrs Griffiths and Gulwin filed a notice of appeal asserting that his Honour had erred in not finding that exclusive rights existed [4].

On 11 October 2006 the Northern Territory filed a cross-appeal asserting that the "native title rights and interests as claimed by the appellants devolved through
a process
of cognatic descent (ie through both father and mother) representing a
fundamental shift from the patrilineal descent rule which
had existed at the
time of sovereignty" [5]. The Full Court dismissed this argument. In doing so, they noted an expert anthropological report showing that the assumption in literature, until twenty or so years ago, that country could only be inherited patrilineally, was false. Further, that "evidence concerning land claims in the same general area as Timber Creek
suggested that cognatic descent
was a common principle" [134].

The Full Court also held that the traditional custom of the Ngaliwurru and Nungali people controlling access to their land was sufficient to prove that they held exclusive possession. "If, according to their traditional law and custom, spiritual sanctions are visited upon unauthorised entry and if they are the gatekeepers for the purpose of preventing such harm and avoiding injury to the country, then they have, in our opinion, what the common law will recognise as an exclusive right of possession, use and occupation" [127].

The Northern Territory also contended that his Honour erred in finding that section 47B of the Native Title Act 1993 (Cth) applied. If it did not apply, then the prior grant of pastoral leases would have extinguished native title [6]. The full court, following the decision in Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakaya Native
Title Claim Group [2005] FCAFC 135; (2005) 145 FCR 442, found that setting aside Crown lands as town lands did not define public purposes or a particular purpose within the meaning of s 47B(1)(b)(ii) [162].

The Full Federal Court allowed the appeal and dismissed the cross-appeal [7].

The Full Federal Court allowed the appeal and dismissed the cross-appeal

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